Context

More than 95% of civil matters are resolved without proceeding to a civil trial. It is, however, important to be aware of the procedures involved in a civil trial so that you are prepared in the event your matter does not resolve and a trial is necessary.

This primer provides a summary of some the procedures and rules that litigants should be aware of in the event that their civil matter is listed for trial. It is highly recommended that litigants speak to a solicitor before preparing for or attending a trial.

What is a trial?

A Trial is when the Claimant/s (person/s making the claim) and the Defendant/s (person/s defending the Claim) present their case to the court and the evidence that they rely upon is tested. The decision maker (the Magistrate in this case) then makes a decision.

Civil trial preparation

Trial Preparation commences after a matter has proceeded to a Pre-Trial Conference, which is essentially a form of mediation done through the Court. If a matter is unable to be resolved at the Pre-Trial Conference, the Registrar will often make programming orders as to Trial Preparation and Trial Process.

The orders a registrar will typically make are as follows:

An order for Disclosure. Disclosure is a process where each party declares to the Court and to the other parties all of the documents, correspondence and evidence they will be relying upon at Trial. An order for Disclosure also imposes an obligation on each party to provide a copy of their Disclosure documents on request. At Trial, parties are only permitted to rely upon evidence that they have previously disclosed. As part of the Disclosure process, parties are required to swear or affirm an affidavit containing a list of documents that they have (or had) in their possession.

An order that parties file a document known as a Listing Conference Memorandum. A Listing Conference Memorandum is a document where a party provides a concise statement of the issues of fact and law that need to be determined at the trial, how those facts and law will be proved and the contact details of each witness they intend to call and a summary of the evidence that witness is expected to give. Each party will also need to complete a Form 32A Statement of Intended Witness as part of their Listing Conference Memorandum.

An order for parties to attend a Listing Conference. The main purpose of a Listing Conference is to set a time and date for the matter to be listed for Trial. At the Listing Conference, the Magistrate will determine what facts and law are in dispute and the amount of time needed to hear the trial. It is important that each party or their legal representative attend the Listing Conference as failure to do so may result in a costs order against the defaulting party. In some cases, judgment may even be awarded against the defaulting party without a trial. For more information on Listing Conferences and Listing Conference Memorandums in Western Australia, please refer to this fact sheet on Listing Conferences.

Witness summons

To ensure that a witness gives evidence, whether it be by providing documents or by testifying orally, you should consider issuing a Summons. If a witness is under a summons, they are compelled to comply with it and failure to do so constitutes contempt of court.

Running a civil trial

A trial begins with the Claimant making its opening submissions. The Claimant summarises the facts, informs the court of what is in dispute, what the Claimant’s position is and how it intends to present evidence to the Court. The Defendant then makes its opening submissions.

The Claimant then calls witnesses and questions them in a process called Examination in Chief. During Examination in Chief, questions are asked of the witness to support the case of the Claimant. After the Claimant has completed its examination-in-chief the Defendant has the opportunity to cross-examine the witness. This is a process where the Defendant asks questions of the witnesses to test the Claimant’s case. This may involve highlighting inconsistencies in a witness’ testimony.

Cross-examination also involves putting to the witness any alternative version of events that forms part of the Defendant’s case. This is particularly important as a party is not allowed to rely on evidence that is contradictory to the testimony of a witness without first putting it to the witness and giving the witness the opportunity to comment. This is known as the rule in Browne v Dunn. Failure to put evidence to a witness who is capable of commenting on it during cross-examination may result in that evidence being inadmissible. After this process has been repeated for each witness, the Claimant closes its case and the Defendant’s case begins.

The Defendant then calls its witnesses for examination in chief and the Claimant has the opportunity to cross-examine each of them. While a magistrate is hearing evidence during a trial, issues sometimes arise as to the evidence’s admissibility. If the court finds that a piece of evidence is not admissible, this evidence will be excluded.

After the court has finished hearing evidence, the parties make their closing submissions. When summing up your case, it is important to rely only on evidence that was heard or tendered in court and was not excluded by the Magistrate. The Magistrate then may give judgment immediately, or in more complicated cases he or she may choose to reserve the decision and deliver it at a later date.